* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-10529

Summary Calendar

 

JOSÉ GUADALUPE CARMONA,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

---------------------

Appeal from the United States District Court

for the Northern District of Texas

(97-CV-118)

---------------------

May 25, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant José Guadalupe Carmona, Texas inmate

# 663291, appeals the district court’s dismissal of his petition

for a writ of habeas corpus, 28 U.S.C. § 2254. We granted a

certificate of appealability (COA) on the issue whether trial

counsel provided ineffective assistance by failing to cross-examine

witness Brian Smith regarding the burglary charges that were

pending against Smith at the time of Carmona’s trial. We will not
2

consider Carmona’s contention that he was denied his rights under

the Confrontation Clause because a COA was not granted on that

issue. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).

To establish ineffective assistance of counsel, Carmona must

show that his lawyer's performance fell below an objective standard

of reasonable competence (cause), and that he (Carmona) was

prejudiced by counsel's deficient performance (prejudice). See

Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); Strickland v.

Washington, 466 U.S. 668, 687 (1984). Failure to establish either

cause or prejudice defeats the claim. Strickland, 466 U.S. at 697.

To demonstrate prejudice, Carmona must show that counsel's

deficient performance makes the result of the trial unreliable or

renders the proceeding fundamentally unfair. See Fretwell, 506

U.S. at 372. 

Because an ineffective-assistance-of-counsel claim is a mixed

question of law and fact, see Loyd v. Smith, 899 F.2d 1416, 1425

(1990), Carmona must show that the adjudication of his claim

“resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” to obtain

federal habeas relief. 28 U.S.C. § 2254(d)(1); see Lockhart v.

Johnson, 104 F.3d 54, 56-57 (5th Cir.)(§ 2254(d)(1) governs this

court’s review of mixed questions of law and fact), cert. denied,

117 S. Ct. 2518 (1997). The state court’s findings of fact are

presumed correct, and Carmona has the burden of rebutting the

presumption with “clear and convincing evidence.” § 2254(e)(1).
3

The presumption of correctness applies to the historical facts

underlying the ultimate conclusion of law in a state court’s

determination of a mixed question of fact and law. See Sumner v.

Mata, 455 U.S. 591, 597 (1982).

Carmona’s attorney challenged Smith’s credibility and motive

for testifying on cross-examination and impeached Smith’s

testimony. The state produced evidence of Carmona’s guilt,

including his own inculpatory statements, that was unrelated to

Smith’s testimony. The trial court instructed the jury that Smith

was an accomplice and that it could not find Carmona guilty on

Smith’s uncorroborated testimony. 

Carmona makes the speculative and conclusional assertion that

if counsel had requested leave to admit evidence of Smith’s pending

burglary charges, the trial court would have admitted the testimony

and the evidence would have affected the jury’s determination.

This is not sufficient to establish an ineffective-assistance

claim. See Lincecum v. Collins, 958 F.2d 1271, 1279-80 (5th Cir.

1992)(ineffectiveness claim based on speculation or conclusional

rhetoric will not warrant relief). 

Carmona also contends that counsel’s failure to challenge the

motion in limine at trial and failure to preserve the issue for

direct appeal caused him prejudice. This is refuted by the state

court’s opinion on direct appeal. Carmona has not shown that

counsel’s performance caused “the result of the trial to be

unreliable or rendered the proceeding fundamentally unfair.”

Fretwell, 506 U.S. at 372. Thus, as Carmona has not shown
4

prejudice, he has not established ineffective assistance of

counsel. See Strickland, 466 U.S. at 697. As the Strickland test

is disjunctive, we need not consider the cause prong further. The

judgment of the district court is

AFFIRMED.